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What legal standings do you have when signing pre-nuptial agreements?

Pre-nuptial agreements (pre-nups) are not automatically legally binding, but courts are increasingly willing to uphold pre-nups if they meet certain fairness criteria.

A key consideration is whether both parties entered the agreement freely, with a full understanding of its implications, and without undue influence.

Courts are more inclined to uphold a pre-nup when it is demonstrated that both individuals received legal advice and had adequate time to consider the terms before signing.

How courts respond to a change in circumstances after a pre-nup

A change in circumstances is one of the main factors that might lead a court to vary or disregard a pre-nup.

For instance, a substantial increase or decrease in one spouse’s wealth, the birth of children, or an illness that affects financial needs can alter the fairness of the original terms.

Section 25 of the Matrimonial Causes Act 1973 gives the courts discretion to adjust financial provisions based on the parties’ circumstances at the time of divorce.

This means that if a pre-nup no longer meets the reasonable needs of either party (especially the financial needs of children), then the court can override its provisions to ensure a fair outcome.

Post-nuptial agreements

A post-nuptial agreement (post-nup) is often used to address changed circumstances.

Unlike a pre-nup, which is signed before marriage, a post-nup is entered into during the marriage.

Courts may view post-nups favourably, particularly when they address new developments in the couple’s financial or family situation.

Couples should enter a post-nup when their financial situations change to keep their agreements relevant and reasonable.

Key considerations for fairness

Under English case law, fairness is the basis for evaluating whether to enforce a pre-nuptial or post-nuptial agreement.

Courts will consider whether:

The agreement meets the reasonable needs of both parties and any children.
Any changes have occurred that make the original agreement unfair.
Both parties disclosed all their assets at the time of drafting, and whether they received independent legal advice.
Both parties had adequate time to consider the agreement before signing (usually 28 days before the wedding).

If a court finds that the changed circumstances have resulted in an outcome that would be unfair, it has the power to adjust the division of assets, even in the presence of a pre-nup.

Reviewing and renegotiating agreements

Regularly reviewing and, if necessary, renegotiating the terms of a prenuptial agreement can help address life changes.

A life event such as a partner’s promotion, redundancy, or inheritance might require an update to the terms of the agreement.

A well-drafted post-nup can serve to adjust the division of assets and other provisions to reflect the new circumstances, increasing the likelihood that the court will uphold the agreement in the event of divorce.

If you have a pre-nuptial agreement in place and are looking for advice on making amendments, please contact us today for expert legal advice.

Stuart Daniel

Director – Head of Family Department

I qualified as a Solicitor in 2006 and now specialise in divorce, financial settlements, childcare arrangements and Pre Nuptial Agreements. I have many years’ experience as a private family lawyer having worked with two other local firms before returning to Mander Hadley, where I first undertook work experience during my university studies.